Would a student have any valid claim to freedom of speech if a school prevented him giving out condoms?

Question

I re-stumbled upon an older story that even the first time I read it had me questioning if the student in it had any legal case for his threat to sue here

The story is long but the short version is that a student was sharing condoms and information about birth control in a school that taught abstinence only sex ed, which the principal didn't approve of. The school created a rule that one couldn't congregate at lunch tables they weren't assigned to which was allegedly enforced selectively only to make those who came to the student for information/condoms sit down as a way to skirt free speech laws.

Then the student gets a bunch of people to put out bowls of candy for a little while before putting out a bowl of condoms. When he is pressured to stop putting out condoms he threatens to sue on the grounds that his free speech was silenced, supposedly their allowing free candy to be put out showed their problem was the condoms and that was preventing his free speech?

This claim seemed flimsy to me, while the boy has the right to talk about birth control, even distribute pamphlets on the topic, I don't think freedom of speech would stretch so far as to allow one to insist they be able to hand out items like condoms when the primary motive was not speech but for people to use the items? It seems the student would have more room to allege first amendment violation with the allegedly selectively enforced rules about talking to people at other lunch tables; but it seems like it would be rather hard to prove selective enforcement.

If this had gone to a court would the student have had any legal leg to stand on?

Answer 1

I don't think freedom of speech would stretch so far as to allow one to insist they be able to hand out items like condoms when the primary motive was not speech but for people to use the items?

The Supreme Court has interpreted "speech" very broadly to include expressive actions of many sorts. The Wikipedia article has a section on expressive conduct. In 1972, in Eisenstadt v. Baird, the court overturned a conviction for distributing contraceptive foam (by someone other than a medical professional to someone who is unmarried). The case turned primarily on equal protection, because because the court had already established that married people had a right to contraception, but Justice Douglas's concurring opinion does discuss free speech:

First Amendment rights are not limited to verbal expression. [Footnote 2/5] The right to petition often involves the right to walk. The right of assembly may mean pushing or jostling. Picketing involves physical activity, as well as a display of a sign. A sit-in can be a quiet, dignified protest that has First Amendment protection even though no speech is involved, as we held in Brown v. Louisiana, supra. Putting contraceptives on display is certainly an aid to speech and discussion. Handing an article under discussion to a member of the audience is a technique known to all teachers, and is commonly used. A handout may be on such a scale as to smack of a vendor's marketing scheme. But passing one article to an audience is merely a projection of the visual aid, and should be a permissible adjunct of free speech.

Answer 2

Does the school receive government funding?

If it doesn’t, then it is not an arm of government and the First Amendment doesn’t apply.

But that’s boring, so let’s assume it does.

He certainly has an arguable case

The school is certainly entitled to introduce rules (like lunch seating arrangements and limiting free stuff handouts), however, to the extent that these limit Constitutional rights, they must pass strict scrutiny:

the law or regulation is necessary to achieve a "compelling state [school] interest". The government [school] must also demonstrate that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose.

In addition, for free speech limits, the restriction must generally be content neutral.

The selective implementation and restrictions seriously undermines this. Indeed, they would have been far better off banning the sex-Ed talk and condom distribution specifically as against a compelling school interest.